GABRIEL W. GORENSTEIN, United States Magistrate Judge.
Plaintiffs Ana Lydia Vega-Santana ("Vega") and Robert Villanua bring this suit for negligence against the National Railroad Passenger Corporation ("Amtrak") and several unidentified entities for injuries Vega sustained in New York's Pennsylvania Station following a trip on an Amtrak train. Defendants now move for summary judgment on all of plaintiffs' claims pursuant to Federal Rule of Civil
The following facts are undisputed unless otherwise stated.
Vega is a writer who lives in Puerto Rico with her husband, Villanua. See Deposition of Ana Lydia Vega, dated Aug. 16, 2012 (annexed as Ex. 1 to Declaration of Jennifer A. Ramme, filed Jan. 25, 2013 (Docket # 42) ("Ramme Decl.")) ("Vega Dep. Tr."), 5; Deposition of Roberto Villanua, dated Aug. 17, 2012 (annexed as Ex. 2 to Ramme Decl.) ("Villanua Dep. Tr."), 4, 8. Vega was invited to give the W.E.B. Du Bois lecture at Colgate University in Hamilton, New York, and traveled there in October 2008. (Vega Dep. Tr. 13; Villanua Dep. Tr. 6-7). Following the lecture, on October 15, 2008, Vega and Villanua traveled from Hamilton to Utica, New York, and then took an Amtrak train from Utica to New York City. (Vega Dep. Tr. 44-45; Villanua Dep. Tr. 7). Plaintiffs' train arrived at Pennsylvania Station in New York City at approximately 3:30 pm. (Vega Dep. Tr. 53-55; Villanua Dep. Tr. 7-8). Vega was carrying one shoulder bag, approximately 1.5 feet by 1.5 feet, and wheeling a medium-sized rolling suitcase. (Vega Dep. Tr. 48-53; Villanua Dep. Tr. 10-11). After exiting the train, the couple looked for signs for an elevator or street exit. (Vega Dep. Tr. 56; Villanua Dep. Tr. 14-15). Because they did not see any signs for either, Vega approached a man on the side of the platform. (Vega Dep. Tr. 56; Villanua Dep. Tr. 15-16). She asked if he worked there, and when he answered in the affirmative, she asked how to exit to the street. (Vega Dep. Tr. 56-57; Villanua Dep. Tr. 19). He responded that the best option was to take the escalator. (Vega Dep. Tr. 8, 57; Villanua Dep. Tr. 19). He then told Vega and Villanua to follow him, and proceeded to move "so fast that [Vega] almost lost sight of him and [she] accelerated [her] step." (Vega Dep. Tr. 8; Villanua Dep. Tr. 20, 23). When Vega got to the escalator, she noticed that it was "narrow." (Vega Dep. Tr. 64; Villanua Dep. Tr. 28). She saw the individual whom she had followed at the top of the escalator, so she got on the escalator. (Vega Dep. Tr. 65). As she stepped on, she "immediately [] tried to place the suitcase ... next to [her], but [she] noticed that there wasn't sufficient space, so ... [she] placed it on the step behind [her]." (Id.). When she was approximately "halfway" up the escalator, she "fell backwards ... [a]nd upon falling backwards, [her] body turned" and she injured her wrist. (Vega Dep. Tr. 69-71, 72-73; Villanua Dep. Tr. 39-41). In response to a question about what caused her fall, Vega stated,
(Vega Dep. Tr. 69-70).
When asked if the escalator was working properly at the time that she fell, she responded, "I cannot swear by it because I don't know if there was a problem, but my impression was that yes, that it was working." (Vega Dep. Tr. 70). Villanua testified that he believed the escalator was in working order. (Villanua Dep. Tr. 30).
After Vega's fall, the escalator stopped, and her husband helped her up. (Vega Dep. Tr. 84-86; Villanua Dep. Tr. 44, 46-50). She was then assisted by police and paramedics in the station and taken to the hospital. (Vega Dep. Tr. 93-94, 99-101;
Plaintiffs filed this lawsuit in Puerto Rico, where they reside. See Complaint, filed October 14, 2010 (Docket # 1). The parties then agreed to have the action transferred to the Southern District of New York. See Stipulation and Order to Transfer Venue, dated Feb. 24, 2011 (annexed to Informative Motion Regarding Transfer of Venue Stipulation, filed Mar. 3, 2011 (Docket # 7)). Plaintiff sought leave to file an amended complaint on July 29, 2011, Motion for Leave to File Amended Complaint, filed July 29, 2011 (Docket # 24); Amended Complaint, dated July 29, 2011 (annexed to Motion for Leave to File Amended Complaint), and on August 29, 2011, this Court granted this request without opposition, Memorandum Endorsement, filed Aug. 29, 2011 (Docket # 25). On January 25, 2013, following discovery, defendants filed the instant motion.
Rule 56(a) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In determining whether a genuine issue of material fact exists, "[t]he evidence of
Defendants seek summary judgment in their favor on three grounds: (1) Vega has failed to establish the cause of her accident and therefore her negligence claim fails as a matter of law, Def. Mem. at 7-11; Def. Reply at 2-8; (2) Villanua's loss of consortium claim fails because it is derivative of the negligence claim, Def. Mem. at 11-12; Def. Reply at 9-10, and (3) the suit cannot proceed against any unnamed defendants, Def. Mem. at 12; Def. Reply at 10. We discuss each argument next.
Vega's amended complaint asserts that the "negligent or wrongful acts or omissions" of defendants caused Vega's injuries. Amended Complaint ¶ 1. To state a claim for negligence under New York law, a plaintiff's allegations must establish "(1) that the defendant owed the plaintiff a cognizable duty of care, (2) that the defendant breached that duty, and (3) that the plaintiff suffered damages as a proximate result of that breach." King v. Crossland Sav. Bank, 111 F.3d 251, 255 (2d Cir.1997).
A plaintiff "need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency." Ascher, 522 F.Supp.2d at 456 (citing Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411, 421 (2d Cir.2004), cert. denied, 544 U.S. 1012, 125 S.Ct. 1967, 161 L.Ed.2d 795 (2005); Gayle v. City of N.Y., 92 N.Y.2d 936, 937, 680 N.Y.S.2d 900, 703 N.E.2d 758 (1998)). "However, when an accident is just as likely to be attributed to a factor other than the one alleged by a plaintiff, any determination of the cause of the accident is bound to be predicated on sheer speculation," and thus cannot form the basis of a negligence claim. Id. (citing Wurtzel v. Starbucks Coffee Co., 257 F.Supp.2d 520, 527 (E.D.N.Y.2003)).
Here, no witness has been able to identify the cause of Vega's fall. Vega testified, "I truly cannot explain it myself. I imagine that I lost my balance." (Vega Dep. Tr. 69). During Villanua's deposition, the following colloquy occurred:
(Villanua Dep. Tr. 39-40). Similarly, when asked if the escalator appeared to be working properly, Vega responded, "I cannot swear by it because I don't know if there was a problem, but my impression was that yes, that it was working." (Vega Dep. Tr. 70). When asked if the escalator "moved in an abnormal way to cause [Vega] to fall," Villanua responded, "That I know, no." (Villanua Dep. Tr. 40).
Plaintiffs have submitted no evidence that connects Vega's accident to any action on the part of defendants. The inability to attribute the accident to any particular cause — let alone a defect in the escalator — is fatal to plaintiffs' claims. As one Appellate Division decision puts it, "[i]n a slip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal to the action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.... Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture." Dennis v. Lakhani, 102 A.D.3d 651, 652, 958 N.Y.S.2d 170 (2d Dep't 2013) (citations and internal quotation marks omitted); accord McHale, 893 F.Supp. at 149-51 (granting summary judgment for defendants where plaintiffs stated in depositions that they did not know what caused fall).
Plaintiffs contend that they have identified the cause of Vega's accident as "lack of signage and faulty employee instructions and guidance." Pl. Mem. at 4. They assert that "no signs were placed near the escalator to warn travelers of the risk of boarding an escalator with luggage." Pl. Mem. at 6. They also argue that "[b]ut for the prompting of an employee, Mrs. Vega would not have used a narrow escalator to transport herself and her luggage in an awkward position (right hand behind her holding a large suit case
In sum, defendants are entitled to summary judgment on Vega's claim of negligence.
Under New York law, "[a] loss of consortium claim is a derivative action that depends on the viability of the primary cause of action." Reed v. Medford Fire Dep't, 806 F.Supp.2d 594, 606 (E.D.N.Y.2011); accord Griffin v. Garratt-Callahan Co., 74 F.3d 36, 40 (2d Cir.1996); Clarke v. City of N.Y., 82 A.D.3d 1143, 1144, 920 N.Y.S.2d 913 (2d Dep't 2011). Where the primary cause of action is dismissed on summary judgment, the loss of consortium claim must be dismissed as well. Cerqua v. Stryker Corp., 2013 WL 1752284, at *4, *7 (S.D.N.Y. Apr. 23, 2013); Kaisman v. Hernandez, 61 A.D.3d 565, 566, 878 N.Y.S.2d 305 (1st Dep't 2009) ("The failure of [plaintiff's] substantive claims is fatal to his wife's derivative claim for loss of consortium."). Because we find that defendants are entitled to summary judgment on Vega's negligence claim, Villanua's loss of consortium claim fails as well.
Defendants seek the dismissal of plaintiffs' claims against "Insurance Companies A, B and C" on the grounds that discovery has ended and plaintiffs have not identified these entities or demonstrated their involvement in Vega's accident. Def. Mem. at 12. Plaintiffs did not respond to this argument in their moving papers. While the naming of fictitious defendants is permissible when a plaintiff has not yet discovered the identity of a party, Kemper Ins. Cos. v. Fed. Express Corp., 115 F.Supp.2d 116, 125 (D.Mass.2000) (citing Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)), aff'd, 252 F.3d 509 (1st Cir.), cert. denied, 534 U.S. 1020, 122 S.Ct. 545,
For the foregoing reasons, defendants' motion for summary judgment (Docket # 41) is granted. The Clerk is requested to enter judgment dismissing the complaint and to close this case.